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David Feldman

Are you nostalgic for some strip club litigation?

Then this is your lucky day.

The legal fight over the striptease business in Houston has heated up, again.

Two topless bars are suing the city of Houston over a controversial, years-old legal settlement they say unfairly hampers business at all but a select group of clubs.

In a June 1 filing, lawyers for Chicas Cabaret and Penthouse Houston argued that the 2013 settlement — which allowed sixteen strip clubs to skirt the city’s sexually-oriented business ordinance by making annual payments to fund an anti-human trafficking unit in the Houston Police Department — amounts to a commercial bribery scheme.

The two north Houston clubs argue the settlement is “unlawful, unfair, and anti-competitive in nature,” and impacted their ability to do business.

“Our position is that discriminating against some clubs and showing favoritism towards others is just plain wrong under the Constitution and Texas law,” said Spencer Markle, attorney for Chicas Cabaret and Penthouse Houston. “That’s why we’re taking them to task.”

The strip clubs are seeking a restraining order that would either prevent city officials from allowing the “sweet 16” clubs to avoided the city’s sexually-oriented business ordinance, or allow Chicas and Penthouse to join the agreement under the same terms.

“We just don’t want to be at a business disadvantage compared to the other clubs that are similarly situated,” Markle said.

[…]

Legal experts said the city’s recent settlement with Fantasy Plaza and the new lawsuits raised renewed questions about the city’s sexually-oriented business ordinance and the way it regulates sexually oriented businesses.

“Why is the city keeping an the ordinance on the books and basically exempting (businesses) from it?” said Josh Blackman, a professor at the South Texas College of Law Houston. “Normally the point of a statute is to enforce it equally. And if they’re just cutting deals with every strip club that asks for it, just repeal the damn statute.”

Markle’s suit echoes the same argument made by lawyers for Fantasy Plaza Cabaret when they sued the city of Houston earlier this year.

See here, here, and here for the background on the 2013 litigation. I thought that settlement was reasonable enough, but I can’t think of a good rebuttal to the argument that if this deal is available to some clubs, it should be available to all of them. I look forward to seeing how this gets resolved.

Firefighters complain about petition counting process

Oh, good Lord.

Mayor Sylvester Turner

Houston firefighters are accusing Mayor Sylvester Turner of standing between them and a voter-approved pay raise by failing to ensure a petition they submitted last month is certified in time to appear on the November ballot.

Turner rejected any suggestion that he has involved himself in the City Secretary’s effort to verify their petition, and his office on Thursday said an offer by the fire union to cover any staffing costs needed to count their signatures is being examined as a possible attempt to improperly influence a public official.

[…]

Houston Professional Fire Fighters Association Local 341 president Marty Lancton accused the mayor of seeking to run out the clock, and said the speed with which firefighters gathered the required 20,000 signatures shows that voters want a say on the matter quickly.

“The mayor has the ability to provide Anna Russell with the resources with which to count this. He has not done it,” said Lancton. “I’m simply trying to find a way to get these counted. Firefighters are just asking for fair treatment and for there to be a resolution.”

The mayor dismissed the criticism.

“She’s the one who’s doing the counting, she verifies the signatures. That’s the process,” Turner said. “No one runs the city secretary’s shop but the city secretary.”

[…]

Accusations aside, Turner said that he is proceeding as if the item will reach a November vote, and has worked to get his message out by appearing on radio programs and discussing the issue publicly. The annual cost of the proposal, he said, could be “well north of $60 million.”

Russell, for her part, said neither the mayor nor anyone from his office has spoken to her about the matter. The process of verifying signatures, she said, must be completed in the spare minutes between her staff’s daily tasks of preparing ordinances, motions, contracts and the council agenda.

My head hurts. Why don’t we just assume that Anna Russell is going to do the job she’s been doing since God was in short pants and give her some room? If for some reason she can’t get it done in time for the filing deadline for November, then get it done for next May. Am I missing something here?

David Feldman, a former city attorney who is representing the fire union, said Russell should make an exception in this instance because he views the pension-related petition she now is reviewing as irrelevant.

That petition, which was submitted in April, calls for all city employees hired beginning next year to be given pensions similar to 401(k)s rather than traditional “defined benefit” pensions. Turner’s pension reform bill that passed the Legislature this year, however, specified what pension new hires would receive, Feldman said, and state law trumps local charters.

“If, in fact, they have 20,000 signatures and she certifies it, it can’t go on a ballot because it’s an unlawful measure,” Feldman said. “That’s where the tipping of the scales comes into play. That communication can be made to her. It obviously has not been made to her.”

Bernstein said Feldman’s reading is wrong. He pointed to a similar case out of Galveston in which the court ruled that a city secretary had a “ministerial duty” to validate a petition and forward it to the City Council, notwithstanding her view that its content conflicted with existing laws.

State law “does not give the City Secretary any discretionary duties,” a state appellate court held in that case. “Any complaints about the proposed amendment’s validity will be decided only if the voters approve the proposed charter amendment.”

Feldman stepped into the anti-HERO petition counting efforts in 2015, insisting that they needed to be checked for fraudulent signatures after Russell had certified that there were enough of them. Seemed like a reasonable argument at the time, but as we know the Supreme Court did not buy it, on grounds of those “magisterial duties” which dictated that she count ’em and that was that. And to answer my own question above, the one thing that could prevent the firefighters’ referendum from getting a vote in May would be having some other charter amendment on the ballot this fall. I had been wondering about that other petition effort, since the originator of it has since said the passage of the pension reform bill – the same one that has the firefighters so upset now – made her effort unnecessary. But if they still need to be counted, then I don’t know what happens next. Like I said, my head hurts.

Firefighters turn in their petitions

Good for them, but boy is this thing a train wreck.

Houston firefighters delivered over 32,000 signatures to City Hall Monday in support of putting a ballot initiative on the November election mandating parity in pay between firefighter and police-officer ranks.

[…]

“This petition drive was necessary because Houston firefighters are at a breaking point,” said Marty Lancton, president of the Houston Professional Fire Fighters Association at a press conference Monday morning. “We now are asking the voters to help Houston fire fighters because the city refuses to do so.”

Former Houston City Attorney Dave Feldman, who is advising the petition effort, said a formal cost estimate of the initiative if approved in November has not been determined.

Using average figures for the cost of police and fire personnel without regard to rank, increasing fire base pay to match that of police would cost roughly $40 million in the current fiscal year. The city finance department projects annual budget deficits of more than $100 million for the next five years.

See here for the background, and a long comment thread. I mean look, this isn’t a proposal right now, it’s an idea. There are literally no details. If one were to run for office on this idea, one would expect to be questioned about basic things, like how much will this cost, and how will the city match job titles across two differently-structured departments. Anyone who provided the answers the firefighters are giving now would not be taken seriously, to put it mildly. In addition, while a candidate for office would have until November to come up with satisfying responses, the firefighters have until the end of August, at which time referendum language would have to be written and approved by City Council.

And what do you think that referendum language might say, based on what we know so far? Think of the recent history of ballot referenda and all the ensuing litigation over said language, and ask yourself if there is any possible wording that will satisfy both the proponents and opponents of this idea. The ballot language lawsuit practically writes itself – it will just be a matter of finding the right taxpayers to serve as plaintiffs. If it is written with sufficient detail to explain how it will be done it will be attacked as too complicated for anyone to understand, and if it is stated simply it will be derided as vague to the point of meaninglessness. This is a bad idea on so many levels, and you can take it to the bank that it will be tied up in court for years to come. The Press has more.

UPDATE: Here’s the full Chron story. I’ll have more to say about this tomorrow.

Paxton prosecutors sue AG office to block records

Hold on to your hats.

Best mugshot ever

Best mugshot ever

In an unusual and head-spinning twist, prosecutors in the criminal case against Texas Attorney General Ken Paxton sued the attorney general’s office Thursday to block the release of sensitive case information that could hinder Paxton’s defense but that his own agency ordered to be turned over to a Texas newspaper.

Go ahead, read that sentence again.

The latest twist began Oct. 14 when The Dallas Morning News requested copies of thousands of pages of investigative records that prosecutors had provided to Paxton’s defense lawyers in preparation for a potential trial on allegations that Paxton broke state securities laws in private business deals in 2011 and 2012.

Prosecutors sent a same-day reply email denying the request, saying previous attorney general opinions had declared such information off limits under the Texas Public Information Act. They also sought an attorney general’s opinion on whether the records could be withheld — a step the law requires when requested government information is denied.

On Jan. 4, however, the attorney general’s Open Records Division sent a letter informing the prosecutors that they had failed to take a second step required by the law — submitting their legal reasons for denying the request, along with samples of the requested information so Open Records Division lawyers could verify whether it fell under the law’s exceptions to disclosure.

Because the law wasn’t followed, the requested information must be automatically released, the letter said, adding that the only step remaining to prosecutors is a lawsuit “if you believe the information is confidential.”

That lawsuit was filed in Travis County district court Thursday by Dave Feldman, a Houston lawyer that Paxton’s trial judge appointed to represent prosecutors Kent Schaffer, Brian Wice and Nicole DeBorde in the matter.

[…]

“Talk about meeting yourself coming around the corner,” Feldman told the American-Statesman. “We’re having to sue the AG so we don’t have to disclose information adverse to the AG that we shouldn’t have to disclose under the law.”

Usually a story requires some element of time travel to have that kind of brain-bending quality. I might suggest that this is the sort of thing that happens when criminal defense attorneys get employed as special prosecutors: They actually take this kind of thing seriously. Look at it this way – this will not be an issue when Paxton appeals his conviction. Getting it right the first time has its merits. Trail Blazers, which has a copy of the lawsuit, has more.

(By the way, it’s not clear to me if this is the same “Dave Feldman” as our past City Attorney, but I’m going to assume that it is. If nothing else, it’s simpler that way.)

Supreme Court rules HERO must be repealed or voted on

Ugh.

PetitionsInvalid

The Texas Supreme Court ruled Friday that Houston City Council must repeal the city’s equal rights ordinance or place it on the November ballot.

The ruling comes three months after a state district judge ruled that opponents of Houston’s contentious non-discrimination ordinance passed last year failed to gather enough valid signatures to force a repeal referendum.

“We agree with the Relators that the City Secretary certified their petition and thereby invoked the City Council’s ministerial duty to reconsider and repeal the ordinance or submit it to popular vote,” the Texas Supreme Court wrote in a per curiam opinion. “The legislative power reserved to the people of Houston is not being honored.”

The city’s equal right ordinance bans discrimination based not just on sexual orientation and gender identity but also, as federal laws do, sex, race, color, ethnicity, national origin, age, religion, disability, pregnancy and genetic information, as well as family, marital or military status.

Houston City Council has 30 days to repeal the ordinance or place it on the November ballot.

[…]

A “disappointed” Parker said she thought the court had erred in its “eleventh hour ruling” and said her team was consulting with the city’s pro bono outside counsel on “any possible available legal actions.” She said the ordinance resembles measures passed by other major U.S. cities and many local companies.

“No matter the color of your skin, your age, gender, physical limitations, or sexual orientation, every Houstonian deserves the right to be treated equally,” Parker said. “To do otherwise, hurts Houston’s well-known image as a city that is tolerant, accepting, inclusive and embracing of its diversity. Our citizens fully support and understand this and I have never been afraid to take it to the voters. We will win!”

You can read the opinion here. To be clear, this was not an appeal of the trial court verdict that declared the number of petitions collected to be insufficient. It’s a ruling on a writ of mandamus filed last August to force the city to accept the City Secretary’s initial count, which only looked at registrations and didn’t consider whether petition pages were proper or whether any signatures had been forged. I personally think it’s perverse to ignore the findings of widespread forgery and general not following the rules, which to me just rewards bad actors, and if that’s what they were going to do they could have issued this ruling back in April and given the city and the HERO defenders more time to prepare for a campaign. As with the ReBuild Houston ruling, I’m having a hard time seeing this as anything but political in nature. It’s a screw job and there’s not much we can do about it.

As to what happens next, I don’t have any faith in the “possible available legal actions” the Mayor alluded to in her statement, so we’ll see what Council does on Wednesday. It’s theoretically possible that the decision could be made to repeal the ordinance and then try again next year, so as not to disrupt this year’s election and have to run a campaign on little time. That obviously requires electing a “good” Mayor, and it of course gives the haters another shot at collecting repeal petitions, this time with full knowledge of the boneheaded mistakes they made last year. I don’t know that I’d go that route, but it is an option.

Regardless of that decision, this will have an effect on the Mayor’s race, and thus on the rest of them. I’ve been asking about HERO in the At Large races where I’ve done interviews, but in the context of it being a settled issue. I’m going to have to put a note on most of them to indicate I did them before today’s ruling was made, as there’s no convenient fence-straddling position any more. Where one could have said something to the effect of “well, I didn’t support it then, but it’s the law now and I don’t see any reason to repeal it” before, now everyone needs to give a straight up keep-or-repeal answer. Five Mayoral candidates – Sylvester Turner, Steve Costello, Adrian Garcia, Chris Bell, and Marty McVey – are known HERO supporters. One – Ben Hall, of course – is not. One – Bill King – has been a fence-straddler. If the repeal referendum is on the ballot, how will you vote? If the decision is made to pass the question to the next Mayor and Council, what will you do? Everyone needs to ask that of all their candidates. I assure you, in the interviews I have left to do, I will be asking.

In the meantime, you should assume that this will be on the ballot, and you should do whatever you can to ensure it doesn’t get repealed. HOUEquality is your one stop shop for information and ways to help. Lane Lewis in his role as HCDP Chair has sent out emails vowing support for HERO. Find something you can do to help and do it. The Trib, Hair Balls, Think Progress, TPM, and Texas Leftist have more.

Ethics Commission rejects Bell’s complaint

No go.

Chris Bell

Chris Bell

The Houston Ethics Commission has ruled against mayoral candidate Chris Bell’s complaint that City Hall was letting Rep. Sylvester Turner start the race with a $900,000 head start in fundraising.

[…]

Bell argues that Turner’s legislative account should not be able to transfer more than $10,000 to his mayoral account, the most that any third-party group can donate to a candidate. The Parker administration and Turner have said he should be allowed to transfer each individual donation that falls under the maximum caps set out by the city’s fundraising laws. He opened his mayoral account late last month and starts with about $900,000, according to his campaign.

Bell was hoping that the Ethics Commission would side with him and determine that Turner is violating city fundraising laws.

“They have no jurisdiction because there was no impropriety,” said Janice Evans, a Parker spokeswoman.

See here for the background. Filing that federal lawsuit he’s been talking about would be Bell’s next step, if he chooses to pursue this further. I’m not a lawyer, but I don’t think I’d put any money on his chances if Bell were to follow that route.

Two city race updates

Item one: We have another candidate for Comptroller.

Jew Don Boney

Jew Don Boney

Jew Don Boney, who sat on City Council for three terms in the 1990′s, will run for City Controller, he told the Chronicle Wednesday.

Boney joins Houston Community College trustee Carroll Robinson and 2013 candidate Bill Frazer in the race for the city’s top financial officer. Two other candidates, current Deputy Controller Chris Brown and METRO board member Dwight Jefferson, are seriously considering joining the race, but have not yet done so.

Currently an administrator at Texas Southern University, Boney served as mayor pro-tem under Mayor Lee Brown and represented District D, a predominantly African-American district. Boney lost to Robinson in a testy election for the seat on HCC’s board in 2011.

Here’s the interview I did with Boney for that 2011 HCC Trustee race. He was my Council member for about two years when I lived in Montrose. I liked him them and am glad to see him get in this race. This is the first time I’ve seen the name Chris Brown listed as a possible candidate. I’d heard his name mentioned before but had confused him with former Council Member and Mayoral candidate Peter Brown. Let there be a big field for this race. It would be nice to have a spirited debate about the Controller’s office and duties.

Item two: Chris Bell fires another shot in his campaign finance battle.

Mayoral candidate Chris Bell filed a formal complaint to the Houston Ethics Commission on Wednesday charging that former City Attorney David Feldman overstepped his authority when he granted permission to Rep. Sylvester Turner to raise money for his mayoral bid when other candidates couldn’t.

In a six-page complaint, Bell’s attorney, Geoffrey Berg, argued that the City Attorney is only allowed to advise city officeholders, which Turner is not. That was a key point of contention in court last month: Feldman replied that since he advised the Houston Ethics Commission — a board that Berg said should interpret campaign finance law for mayoral candidates — he effectively could advise Turner directly.

“I received a simple email from Sylvester Turner,” Feldman said as he defended himself in court last month. “I responded with an answer. We do serve our citizens, whether they happen to be state representatives or not.”

[…]

In Wednesday’s complaint, Berg reiterates much of the case he has made in court for months, arguing that the legislative history of the city’s campaign finance law makes clear that Turner’s strategy violates it. Berg also responds to the City’s argument, central to its case, that a January federal court decision that declared Houston’s blackout period unconstitutional renders Bell’s grievance obsolete.

“Mr. Feldman is wrong. The contribution cap reflected in the Ordinance is in no way dependent on the constitutionality of the blackout period,” Berg wrote.

See here, here, and here for the background. Another lawsuit from Bell on this issue remains a possibility. I don’t have anything else to add to this.

HERO repeal petition trial wraps up

There actually wasn’t all that much testimony in the HERO repeal petition trial. On Tuesday, former City Attorney David Feldman took his turn on the stand.

PetitionsInvalid

City Secretary Anna Russell originally found enough valid signatures but did not verify the way each page was certified. When Feldman examined the pages himself, he testified, problems were immediately apparent.

The incendiary language at the top of each petition page, attacking and misconstruing the ordinance, he said, took up so much room that the legally required oath, signature and notary lines were crammed together at the bottom of the page, Feldman said, leading many signature gatherers to err in verifying their pages.

“I believe today, as I did then, that the petition is not valid,” he said afterward.

The plaintiffs’ attorney, Andy Taylor, called Feldman’s testimony a “non-event” that “added nothing” to the city’s case.

“He and his legal team for the mayor spent all of the time trying to disqualify innocent voters from being counted in the petition rather than … trying to qualify and save their status as innocent voters,” Taylor said.

That argument comprised a key portion of his cross-examination of Feldman, in which Taylor suggested no city official knew how many valid signatures were on the pages that were not rejected. Taylor repeated that, as of December, there were 19,470 names on valid pages, which he said meant the accurate tally would be over the threshold.

Feldman countered that officials had verified all signatures on valid pages and found the tally short.

“Yes,” Feldman said. “We did the analysis.”

See here for the prior update, on Mayor Parker’s testimony. I wish I had a better feel for how things have gone, but there’s not a whole lot of other coverage out there. Feldman was not the only witness to testify on Tuesday.

As part of its defense case, the City of Houston called Janet Masson to the witness stand. She’s a forensic document examiner — with a background in handwriting analysis — who studied each of the 5,100 pages of the petition. Masson testified that she found several irregularities. For example, she said many of the signatures appear to be duplicates.

Geoffrey Harrison is the attorney for the City of Houston. He explained the importance of Masson’s testimony in an interview outside of the courtroom.

“She is showing hundreds of pages by hundreds of pages and hundreds of signatures by hundreds of signatures that there is fraud, forgery and clearly non-accidental defects,” Harrison said.

The plaintiff’s attorney, Andy Taylor, argued during the trial that even though some signatures may be duplicates, they should be counted as valid at least once, and not thrown out entirely.

Much as it pains me to agree with Andy Taylor, I don’t think it’s unreasonable for a duplicated signature to count once, if it is otherwise valid. It would be nice to know why there are so many apparent duplicates – it sure sounds to me like Taylor is admitting that there are a bunch of them – and their presence absolutely calls into question the integrity of the petitions that were submitted as a whole. Some level of sloppiness is to be expected in a petition process, but at some point you have a credibility problem.

And speaking of such things.

Attorneys defending the city of Houston’s contentious equal rights ordinance concluded their case Wednesday by alleging rampant fraud in the petition opponents filed in hopes of forcing a repeal referendum on the law, and targeting pointed questions at the lead plaintiff, attorney and conservative activist Jared Woodfill.

Among the 5,199 pages petitioners submitted to the city last summer was one containing the names of Woodfill, the former longtime head of the Harris County Republican Party, and his wife, Celeste Woodfill. Woodfill printed his name in the oath at the bottom of the page to affirm both signatures were correct and collected in his presence. Testimony focused on whether Woodfill may have penned the signature next to his wife’s name and whether Woodfill’s printed name at the bottom of the page constituted a signature for the purposes of swearing an oath.

[…]

In questioning Woodfill on Wednesday, city attorneys drew on a December deposition in which his answers left some doubt as to whether his wife’s signature was authentic. The mark looked “messier” than he expected, Woodfill recalled Wednesday. Pressed on the point by one of the city’s attorneys, Alex Kaplan, Woodfill said he filed paperwork correcting his deposition immediately after speaking with his wife, and said flatly, “I did not sign for my wife.”

“I corrected that and then I talked to her about it, all right? My oath is true,” he said. “I assure you she signed it. You’re insinuating she didn’t sign it.”

The plaintiffs’ attorney, Andy Taylor, responded by calling Celeste Woodfill to the stand. She acknowledged her petition signature and her signatures on other public documents the city attorneys displayed differed greatly, but she said, “There is no doubt in my mind, that is my signature,” and had a ready explanation.

“I was holding my 30-pound son in one hand and trying to sign with the other,” she said on cross examination. “Breakfast, getting the backpacks packed, it’s a totally different situation … than sitting at a table. Any mother would understand.”

I suppose if the petition page were a loose piece of paper, and you didn’t have a hand free to hold it down as you signed it, it could be messy. On the other hand, if the petition page were on a clipboard, as is usually the case for petitions, it would be stationary as you signed it, so your signature would look normal. I say this as someone who did a lot of things one-handed back when my kids were little.

Believe it or not, that was the end of testimony in the case. Both sides made their closing arguments yesterday.

Andy Taylor, attorney for the plaintiffs, painted the trial as pitting desire of the people to vote against an all-powerful City Hall. Gesturing to the city’s many pro bono lawyers, Taylor referenced the bible.

“Help us beat Goliath,” Taylor said. “Help us beat City Hall.”

Geoffrey Harrison, attorney for the city, was less theatrical in his closing. Instead, he walked jurors through some of the pages they will be asked to consider and determine if, for instance, a circulator both printed their name and signed the bottom of the page.

“The plaintiffs have tried throughout this case to skirt the law,” Harrison said. “We don’t get to pick and choose what rules we follow.”

If nothing else, this confirms my theory of the litigation, and why the plaintiffs were so adamant about putting this before a jury: The facts are not on their side. They hope to win by appealing to emotions. Maybe it’ll work, I don’t know. I certainly hope the jury was impressed by the evidence of fraud and forgery. We’ll have to wait till they’re ready to tell us.

Mayor Parker testifies at HERO repeal petition trial

Monday was Mayor Parker’s turn to take the stand at the trial over the validity of the HERO repeal petitions. You’d think this would be a momentous occasion of high drama, but since this whole thing is about technicalities and not about the merits of the ordinance, it was a lot less exciting than it sounds.

Mayor Annise Parker

Mayor Annise Parker

Parker, for her part, labeled her testimony “tedious” and remarked “those poor jurors” to an aide during a morning break.

“They’ve made a lot of public allegations about what I did or did not do, but they really didn’t ask me about what my job was and what I actually did do, which was surprising,” Parker said. “They spent a lot of time asking me to second-guess the work of the legal department. As I had to reiterate, I wasn’t down in the weeds, that wasn’t my role.”

On some level, tedium was expected. Jurors are not examining the merits of the ordinance, which City Council passed last May, banning discrimination among businesses that serve the public, private employers, housing, city employment and city contracting but exempting religious institutions.

The jury instead is tasked with parsing the thousands of petition pages opponents submitted last July. The plaintiffs – conservative pastors and activists – say they verified 31,000 of the signatures, but city attorneys now say only 3,905 are valid, citing alleged fraud, perjury and additional errors they did not find when they initially rejected the petition.

Parker’s critics had questioned a meeting that took place in her office the same day the city announced opponents failed to gather the required 17,269 signatures. At that meeting, according to a deposition of City Secretary Anna Russell, a video of which was played in court Monday, then-City Attorney David Feldman asked Russell if he could add his own analysis to her page-long memo that originally found enough valid individual signatures to qualify the petition. Citing errors that disqualified entire pages, Feldman’s added paragraphs ultimately doomed the petition.

[…]

The plaintiffs used Russell as their final witness. In her deposition, Russell said she believed she had completed her duty when she verified more signatures than the group needed to qualify for the ballot. Taylor closed with Russell’s answer to his question about whether she was proud of her office’s work in light of the city’s finding that the petition had failed and Parker and others had criticized the signature gatherers’ work as fraudulent and sloppy.

“I feel like we did our job, and I’m proud of it,” Russell said.

But attorneys for Russell and the city chose clips from her deposition that painted a more coordinated portrait of the city’s effort, with Russell saying she was aware that the City Attorney’s office was conducting its own review. She also said that while it was her responsibility to look at whether those who signed the petition were registered Houston voters, certifying the petition was not within her duties.

See here and here for previous updates. The Anna Russell testimony is the more interesting action, since the plaintiffs’ case largely rests on the assertion that only her review of the signatures, which involves checking to see who is and who isn’t a Houston voter, is relevant. I suspect the excitement level will ratchet up when the city puts on its defense, at which time it will present its evidence about fraud and forgery. In the meantime, David Feldman will take the stand. That ought to be worth watching even if the subject matter is dry. Project Q has more.

Front and center with the fraud allegations

The city goes on offense as it defends the equal rights ordinance at the repeal petition trial.

PetitionsInvalid

In his opening argument in court Tuesday, Alex Kaplan, an attorney for the city, said the petition is “full of problems.”

“It is precisely these kinds of cases where there are high public passions where the rules must be followed,” Kaplan said.

Andy Taylor, attorney for the plaintiffs, said any claims of fraud are untrue and the city’s argument is “laughable.” He said “well-intentioned voters from time to time didn’t follow all the rules” but there was no fraud.

“They’re talking about ticky-tacky deficiencies like we’re missing a comma or our signatures are hard to read,” Taylor said. “Give me a break. Did our forefathers die in battle so that commas could prevent their children from voting?”

[…]

University of Houston law professor Richard Alderman said it is common in such cases for signatures to be challenged and thrown out, and the case ultimately will be a numbers game of how many valid signatures remain. Still, Alderman said, substantiated fraud claims could influence jurors’ perception of the case.

“If the city were to allege five or six problems and the jury believed one or two, then when they’re on the fence they’re more likely to believe one of the others,” Alderman said.

City attorneys focused heavily on claims of fraud in a lengthy motion, filed this month, asking state District Judge Robert Schaffer to rule on important pieces of the case before it even began. Schaffer largely declined to do so, allowing jury selection to begin Monday and opening arguments to be given Tuesday.

Still, the filing cited depositions of people who gathered signatures in arguing the effort was tainted by “fraud, perjury, and other dishonest acts.”

According to the city, some of those involved in the petition drive admitted signature gatherers had an incentive not to follow the city charter because they were paid by the signature, regardless of validity. Others involved said residents signed for people other than themselves.

See here for the background. The depositions, detailed in the story, were first publicized by HouEquality, and I encourage you to click those two links and see the evidence for yourself. I tend to agree with Professor Alderman that the more credible allegations that the petition gatherers were egregiously sloppy, if not outright fraudulent, that the city can make, especially given the video evidence that they knew exactly what the rules were, the less sympathy a jury is going to give them. I’m very interested in seeing how they explain some of this stuff. And speaking of the jury:

On Monday, lawyers for HERO opponents said they wanted to be allowed to ask — directly — whether any potential jurors were lesbian, gay, bisexual or transgender. They argued that this was important information because they wanted to be sure jurors aren’t biased. In other words, they wanted to force potential jurors who might be closeted either to out themselves as LGBT or perjure themselves. Moreover, the folks who argue that LGBT people don’t face discrimination wanted to discriminate by keeping LGBT people off the jury.

The judge said no.

It’s increasingly hard to believe that that these guys can win – or that they think they can win – unless they have the playing field tilted in their favor. KUHF, Towleroad, Project Q, the Christian Examiner, and Media Matters have more.

It’s going to be a long trial

Settle in and get comfortable, the HERO repeal petition trial is going to take some time.

PetitionsInvalid

Ultimately, though, the trial is expected to be tedious and technical. So much so, that even after the city lost a significant motion two weeks ago to send the trial before a judge rather than a jury, Parker focused her concern on the jurors.

“What I do feel sorry for is the jurors who are going to have to go through page by page, signature by signature over a matter of weeks,” Parker said. “A trial that could have taken a week or two is probably going to take a couple of months to get through, and that’s a lot to ask for the jurors, but we will do whatever we need to do to defend the position.”

[…]

“The reason why you don’t typically get a jury trial in election-related cases is it’s a time issue,” election law attorney Doug Ray said. “They need to either get on the ballot or decide the results.”

The case likely will unfold slowly as attorneys on both sides have the luxury of time – with the deadline for placing the repeal referendum on the November ballot about six months away.

Judge Robert Schaffer already has indicated that not only will jurors need to review petition pages, but he will as well.

The trial officially started last week, with some administrative details being handled. Jury selection is the first order of business. Among the things the jury will get to hear are allegations of fraud and forgery in the petition process. This is going to be a long and tedious trial, but it won’t be a boring trial.

Feldman’s parting memo

Outgoing City Attorney David Feldman shares his thoughts on the state of the city’s campaign finance rules as he makes his exit.

Chris Bell

Chris Bell

City Hall began its attempt to use a federal court ruling declaring its own election rule unconstitutional to its advantage it in a second, unrelated suit in a letter this week.

In the below memo to City Council on Thursday, City Attorney David Feldman argues that the U.S. District Judge’s ruling last week that tossed the city’s blackout period had a broad impact: It invalidated the concerns of Chris Bell, a mayoral candidate suing the city for not strictly enough enforcing campaign finance rules.

In the four-paragraph letter, Feldman writes that case law is building that governments cannot outlaw campaign spending merely for its own sake. And Feldman says that without the previous restriction on when candidates can raise money, there is no reasonable challenge to be made by Bell as to why Rep. Sylvester Turner, Bell’s opponent, can’t spend it.

Turner is not merely attempting to spend money, however, but transfer it. He eventually hopes to transfer almost all of the $1 million in his legislative account to a to-be-created mayoral account. Bell believes that Turner’s legislative account should be able to only donate $10,000, the maximum that any political action committee can contribute in a city election.

See here and here for the background, and click that Houston Politics link to see the memo. Not a whole lot to add here, though I should mention that while I believe Turner should be able to transfer his funds as he sees fit (Bell will likely file suit over that), that outcome would be a raw deal for Chris Bell. I’m sure he would have been raising money last year if he could have, and the late-breaking injunction against the blackout rule not only doesn’t give him much time back to catch up, there are now more candidates out there that may be competing with him for the money. But that’s the way it goes, and if Bell manages to get a favorable ruling in his lawsuit, it’s Turner that will be in a world of hurt. You know what they say about the fairness of life.

HERO repeal petition trial will be heard by a jury

Let’s get on with it.

PetitionsInvalid

A state district judge ruled Tuesday that the lawsuit surrounding the city’s embattled equal rights ordinance will go before a jury trial rather than a bench trial, a decision that conservative opponents of the law are hailing as a major victory.

Critics suing the city over its equal rights ordinance had been pushing for the case to go before a jury, a move Mayor Annise Parker’s administration said was not in compliance with state election law.

Judge Robert Schaffer issued a brief decision late Tuesday afternoon, one week before the trial is set to begin. Schaffer’s order denied the city’s request for a bench trial, a response to the plaintiffs’ earlier filing for a jury trial.

“It’s great news,” plaintiff Jared Woodfill said. “It’s great to see that this judge is not going to allow (the city) to keep the vote from the people.”

City Attorney David Feldman said he still “firmly believes” the case is better suited to a bench trial but that he respects Schaffer’s decision. City attorneys argued at a hearing last week that the case was best defined as an “election contest” under state law. Such cases can only be decided by a judge, not a jury.

The plaintiffs’ attorneys had countered that because no election on the equal rights ordinance had taken place, the case did not qualify as an election case.

“It’s an unusual case,” Feldman said. “But we’re prepared to move forward.”

See here and here for the background. As I said before, I don’t think it should really matter whether this is a bench trial or a jury trial. The facts are the facts. What the the repealers’ excitement at this ruling suggests to me is that they’re not confident in their facts and are counting more on winning via emotional appeal. If that’s your strategy, then yes, I’d rather go before a jury.

As for those facts, HouEquality shows how they could be a problem for the bad guys.

We have included a publicly available document from the Harris County District Clerk’s website with regards to the upcoming trial. These are excerpts of a deposition from an individual who gathered signatures for the opposition’s petition efforts.

In short, he admits under oath, that he committed fraud and perjured himself by attesting that the signatures he turned in were all collected by him when, in fact, they were not.

The court document makes for an interesting read and certainly is not an isolated case.

Go read the linked document – it’s a variety of excerpts from a deposition, so there are gaps between pages – and see here for more evidence of possible bad acts on the part of the petition gatherers. I for one am looking forward to how this plays out.

City does a 180 on campaign finances

Not all losses in court are created equal.

Chris Bell

Chris Bell

City officials will argue that the city’s election ordinance is unconstitutional as part of a strategy to strengthen their position in a lawsuit that could shape the early stages of this year’s mayor’s race.

After defending the city Monday in civil court, City Attorney David Feldman said he would write an opinion explaining to the City Council why its fundraising “blackout” rule is unconstitutional. A federal judge on Friday ruled that law likely violated the First Amendment.

A separate lawsuit by likely mayoral candidate Chris Bell, the subject of a hearing in state court Monday, accused the city of failing to strictly enforce its fundraising law. Feldman intends to take advantage of the ruling in the federal case to convince the judge in the Bell lawsuit that Bell no longer has a case.

The strategy, hatched in closed chambers by Feldman after more than an hour of heated debate in the 165th District Court, amounts to the city capitalizing on its own loss just days before.

“In the first instance, we have some obligation to defend the constitutionality of (city) ordinances,” Feldman said in an interview following Monday’s hearing. “But we have a ruling from a federal district court judge that the blackout period is unconstitutional. I believe he is correct.”

See here for the background. When the city said it would not fight the injunction in that case, they weren’t kidding. One wonders how enthusiastically they would have adopted the arguments from the Gordon lawsuit that they had previously opposed if the ruling hadn’t been handed down before this case went to court. Timing is everything in this life.

City officials said Friday’s decision made Bell’s lawsuit moot. If no blackout period is in effect, then Turner’s fundraising during that period is proper, the city argued, and there is no need to transfer any money.

Bell said he would challenge Friday’s decision in a new lawsuit in federal court.

It’s my understanding that there is a separate ordinance that regulates the transfer of funds from one account to another, and it is this ordinance, which was not addressed in the Gordon lawsuit, that is at issue here. That’s my understanding, and I’m not a lawyer, so if you know better please say so in the comments. Be that as it may, I do broadly agree that if the blackout period is illegal, then it makes no sense for Turner to be barred from transferring the money he raised in his State Rep account to a Mayoral account. He would have been raising Mayoral money last year if he could have been. Campos and Houston Politics (tangentially) have more.

Injunction granted against Houston fundraising blackout period

It’s a whole new ballgame out there.

Trebor Gordon

Trebor Gordon

A federal judge on Friday temporarily blocked a law limiting when candidates in Houston municipal elections can raise money, prompting a scramble to contact donors sooner than campaigns had intended.

The injunction, two months after a City Council candidate said the law infringed on his constitutional rights, could reorder the timeline for future elections and accelerate this year’s mayoral race – the first without an incumbent since 2009.

An ordinance prevented city candidates from raising money prior to Feb. 1. But hours after the ruling from U.S. District Judge Sim Lake, some mayoral campaigns said they were planning fundraisers and placing calls to donors who were thought to be off-limits for three more weeks.

“There’s not that many days, but political calendars will start to shift based on this ruling,” said Mustafa Tameez, a longtime Democratic consultant. “It creates more pressure for people to announce sooner.”

The lawsuit against the city, filed by candidate Trebor Gordon, argued that his First Amendment right to political expression authorized him to raise money for his campaigns whenever his contributors wished to donate. Lake said in the order that Gordon was likely to succeed on the merits in the case.

“It’s a great victory for the First Amendment,” said Jerad Najvar, the attorney for Gordon, who plans to begin raising funds immediately. “It’s a bigger matter than just this campaign.”

See here and here for the background, and here for Judge Lake’s ruling. This is only an injunction – the merits of the case have not been decided – but it seems clear from that ruling that Gordon is very likely to prevail. I won’t be surprised if the city, which has chosen to accept this ruling rather than appeal it, seeks a settlement. In the meantime, anyone that has filed a designation of treasurer for the 2015 elections can start raising money now. If your mailbox is still a smoldering wreck from all the solicitations it had to handle last year, its brief period of respite is now officially over. You have been warned.

As I’ve said before, I think this was the correct ruling. I also think it will benefit incumbents more than challengers, but we’ll see. The January finance reports will be posted soon, so we’ll get a picture of where things stood going into the year – in particular, who had an advantage prior to the opening of what had been the fundraising season – but the July finance reports will tell the story. We’ll need to look for all donations made in January and see who took the biggest advantage of this change in the rules.

One more thing:

Still unclear Friday was how the decision would affect a separate lawsuit filed by likely candidate Chris Bell, who charges that Rep. Sylvester Turner’s fundraising strategy violates the ordinance. Bell’s attorney said Friday afternoon that he still planned to follow through with his suit, which will be heard in court Monday.

See here for the background on that. The crux of that issue is whether Turner, and possibly Sheriff Adrian Garcia, who were free to raise all the money they wanted for their non-city campaign accounts under the old rules, could then transfer those funds to accounts to be used for a city election. Then-City Attorney David Feldman said that they could, and Bell filed suit to stop it. I’m hard pressed to see how Bell prevails here, but let’s wait and see what arguments he and his attorney present in court.

Judge or jury ruling on HERO should come soon

From the other big lawsuit action on Friday.

PetitionsInvalid

A district judge offered little insight Friday as to whether he will grant a jury trial to conservative critics who have sued the city over its controversial equal rights ordinance.

During a brief but lively hearing in the 152nd District Court in Houston, Judge Robert Schaffer said he will likely issue that decision Monday or Tuesday. Barring any delays, the trial is set to start Jan. 20.

Equal rights ordinance opponents are pushing to take the case before a jury instead of allowing Schaffer, as originally planned, to issue a decision from the bench. Attorneys for the city are strongly opposed to that format, saying it violates state election law to send the case to a jury.

[…]

Schaffer offered no definitive commentary on the jury trial issue, but it was clear that his decision will likely depend on whether or not he determines that the case qualifies as an “election contest” under state law. An “election contest” can only be decided by a judge, not a jury.

Andy Taylor, attorney for the plaintiffs, argued that an election contest requires an election on the issue to have already happened or be imminently scheduled to take place, neither of which has occurred.

“It is an impossibility for me to file an ‘election contest,’ ” Taylor said.

City attorneys, however, countered that state Supreme Court decisions as well as a recent Court of Appeals ruling define an “election contest” more broadly and include the lead-up to an election. In charging that the city incorrectly invalidated their petition, equal rights ordinance opponents are invoking the state election code, city attorneys argued Friday.

See here for the background. I don’t know how to evaluate these claims, as they’re pretty technical. To some extent, it shouldn’t really matter if it’s a bench trial or a jury trial. The facts are the facts and either the city followed the law in rejecting the petitions or they didn’t. I presume the HERO haters think they have a better shot playing on emotions, and they may be right. If the facts are against them, though, I think that can only take them so far.

And then there’s this, which I added as a late update to my Friday post:

Attorneys for the city last month filed a motion requesting a bench trial, but the plaintiffs say they have a “constitutional right to a trial by jury.” That motion and others are scheduled to be heard today, but we’ll have to wait until the trial, scheduled for January 19, for the truly good stuff, which includes allegations of forged signatures.

So far, most of the City’s challenges to the petitions’ validity has centered around technical — and pretty boring — matters like whether a page included a blank space for a circulators’ signature. What’s really intriguing, though, is the City’s more recent contention that many names were forged, and that Woodfill “is no stranger” to fraudulent petitions.

In motions filed last November, attorneys for the City cited a suit where Woodfill — then the chairman of the Harris County Republican Party — accepted “facially valid” election petitions that “turned out to involve ‘forgery, fraud, or other non-accidental defects discoverable only by independent investigation.”

No one has argued that Woodfill knew the signatures in that election were invalid at the time he accepted them, but attorneys for the City point out that the court didn’t buy Woodfill’s argument that “the truthfulness of a circulator’s affidavit is strictly a criminal matter.”

[…]

These allegations were enough for for plaintiff Steve “Birth Control Pills Make Women Less Attractive to Men” Hotze, to drop out of the suit — something the City’s attorneys say is evidence that “misconduct and non-accidental defects are so pervasive” throughout the petitions. Listen, it’s a bad sign when your co-plaintiff is Steve Hotze. But it’s a really bad sign when Hotze drops out from fear that he may not have a legally sound argument.

If it turns out that the haters submitted phony signatures, then having a jury trial surely won’t help them. Either way, the trial is expected to last four to six weeks (!) because there’s so much evidence to read through. If the haters get their way, I sure won’t envy anyone who gets picked for that jury.

First HERO repeal petition hearing today

Have I mentioned that this is a really busy month for big ticket courtroom action?

PetitionsInvalid

Conservative opponents suing the city over its equal rights ordinance are pushing, along with several City Council members, for the upcoming case to go before a jury, a move the administration said is unprecedented and would defy election law.

After a City Council meeting Wednesday, members Michael Kubosh, Oliver Pennington and C.O. Bradford, who voted in favor of the ordinance last spring, all argued the case should go to a jury trial rather than before a judge as originally scheduled. A state district judge will hold a hearing Friday on the request for a jury trial and the city’s response asking for a such a trial to be barred.

“The city may be deploying a demonstrative legal strategy,” Bradford said. “But I believe it will be a loser in the public opinion arena. We simply should not be trying to remove the people from the process.”

Just as a reminder, this is all about whether or not The People get to vote on the civil rights of some other people. We simply should not be conceding that point.

“There never has been a jury trial in an election contest in the state of Texas,” [former City Attorney David] Feldman said.

Plaintiff Jared Woodfill disputed that claim, saying the case is not an “election contest” because it does not pertain to the results of an election.

“What they’re really saying is they don’t think the people are smart enough to make that decision,” Woodfill said. “Whether it’s been having the voters vote or now allowing a jury to decide, (Parker) has been consistent on that.”

Election law attorney Doug Ray, who had not seen the court filings, said the case sounded like a “ballot access” issue – whether or not a candidate or a measure qualifies for a ballot. In those cases, granting a jury trial is rare, he said.

“It’s not clear-cut,” Ray said as to whether or not the plaintiffs are entitled to a jury trail. “As they say, the devil is always in the details.”

Feldman agreed that the case is a “ballot acccess” issue, saying that both “ballot access” and “election contest” cases fall under the state’s election code. Under the election code, only a district judge, not a jury, has the power to rule in those cases, he said.

Woodfill, Kubosh and Bradford all said the city would be wise to allow a jury trial in light of the recent controversy over the city’s subpoenaing of sermons and other materials belonging to certain pastors who helped organize the petition.

Funny how the “wise” thing to do at every stage of this process has been to give the haters exactly what they want. I’m not an attorney and I don’t know anything about the fine legal points at issue here. If Woodfill et al have a persuasive case, they’ll get what they’re asking for on the merits. What say we stick with that for now? The case is set to begin on January 19. I can’t wait.

UPDATE: I was not aware of this:

Attorneys for the city last month filed a motion requesting a bench trial, but the plaintiffs say they have a “constitutional right to a trial by jury.” That motion and others are scheduled to be heard today, but we’ll have to wait until the trial, scheduled for January 19, for the truly good stuff, which includes allegations of forged signatures.

So far, most of the City’s challenges to the petitions’ validity has centered around technical — and pretty boring — matters like whether a page included a blank space for a circulators’ signature. What’s really intriguing, though, is the City’s more recent contention that many names were forged, and that Woodfill “is no stranger” to fraudulent petitions.

In motions filed last November, attorneys for the City cited a suit where Woodfill — then the chairman of the Harris County Republican Party — accepted “facially valid” election petitions that “turned out to involve ‘forgery, fraud, or other non-accidental defects discoverable only by independent investigation.”

No one has argued that Woodfill knew the signatures in that election were invalid at the time he accepted them, but attorneys for the City point out that the court didn’t buy Woodfill’s argument that “the truthfulness of a circulator’s affidavit is strictly a criminal matter.”

[…]

These allegations were enough for for plaintiff Steve “Birth Control Pills Make Women Less Attractive to Men” Hotze, to drop out of the suit — something the City’s attorneys say is evidence that “misconduct and non-accidental defects are so pervasive” throughout the petitions. Listen, it’s a bad sign when your co-plaintiff is Steve Hotze. But it’s a really bad sign when Hotze drops out from fear that he may not have a legally sound argument.

My, my, my. Now I really can’t wait to see what happens at trial.

Donna Edmunson

From the inbox:

Donna Edmunson

Mayor Annise Parker has selected Donna Edmundson to be the new city attorney. Upon confirmation by City Council, Edmundson will become the first woman to hold the position. She has nearly 30 years of experience with the City Legal Department.

“With just a year left in my term and a wealth of internal talent, I did not see a need to consider an outside candidate,” said Mayor Parker. “Multiple employees were interviewed from within the department, and I concluded Donna is the best choice. She has deep and broad experience in matters of law and management. I particularly like that her recent experience has been in the area of neighborhood protection, which is one of my top priorities.”

Edmundson has been practicing law in the City Legal Department since 1986. Since 2008, she has served as Chief of the department’s Neighborhood Services Section. Her current responsibilities include managing 25 attorneys and support staff as well as providing legal advice regarding neighborhood issues to various city departments. She has pursued legal action against the owners of dangerous buildings and works closely with the Houston Police Department (HPD) on gang, drug and vice related matters. Her work targeting a north side gang known as the Hollywood Click resulted in a 40 percent reduction in criminal activity in a 48 square mile area on Houston’s north side. She was also intimately involved in the settlement that ended long-standing litigation between 16 area topless clubs and the City. The agreement set new regulations for operation of the clubs and provided funding for creation of a human trafficking unit within HPD.

Prior to being named to the management position of section chief, Edmundson served as a Senior Assistant City Attorney. She has a law degree from South Texas College of Law and a B.A. from Sam Houston State University.

Edmundson will replace David Feldman, who is resigning effective January 16, 2015, to go into practice with his son.

City Council is expected to consider Edmundson’s confirmation in two weeks.

The Chron story has some more details.

Colleagues describe the soft-spoken attorney – a fourth-generation Houstonian, Westbury High School graduate and the youngest, with her twin brother, of six siblings – as tireless, firm and passionate about her work.

Wanda Adams, an HISD trustee and former council member who worked with Edmundson on many neighborhood nuisances, said she has “a community heart.”

“She approaches her work with passion, and she’s very honest and transparent,” Adams said. “Donna would go out and look at the issue. She didn’t sit at the desk. I always used to talk about the landlords and dilapidated apartments. She would actually go out there and look and see and talk to the tenants.”

[…]

Parker lauded Edmundson’s work to secure a 10-year court order against a north Houston gang known as the Hollywood Click. The injunction, signed in 2011, severely limits gang members’ activities in a 48-square-mile area and, officials said, has cut crime there 40 percent. Edmundson also worked on a novel settlement with 16 area topless clubs that legalized lap dances in exchange for the clubs funding a new police vice unit and closing private rooms.

“The things that we do and we impact, you can directly see,” Edmundson said. “We can get a call about something that’s a dangerous building and get the owner to take it down. You have locations where there’s criminal activity. We can go in and sue them or get some sort of injunctive relief to bring that activity to a close.”

Neighborhood leaders praised Edmundson for her responsiveness. Glenbrook Valley residents had accumulated a backlog of alleged deed restriction violations the city had ignored when Edmundson took over theNeighborhood Services Division several years ago, civic leader Ann Collum said. Edmundson came to the neighborhood and reviewed the entire file.

“She’s very caring and very concerned,” Collum said. “There was a completely open communication line if we had a question or didn’t understand something. She will be an asset to the whole city.”

Councilman Mike Laster served in the city attorney’s office with Edmundson in the 1990s and has worked with her on issues in his district since joining the council in 2012.

“As a colleague in the city attorney’s office, she was a great mentor and a gentle teacher to young attorneys and other colleagues,” he said. “As a person who worked with a council member, she brought that same sort of intelligence and good humor to the table. She has the ability to be strong and firm and definite when that’s needed, and she also, more importantly, has an open mind.”

All very good to hear. Gotta say, I’d have thought we’d have had a female City Attorney by now, but apparently not. I wish Ms. Edmunson all the best. She’s coming in at a critical time, with the HERO repeal petition lawsuit about to get underway. Good luck with the new job, and please be immediately successful. Texas Leftist has more.

Feldman resigns

Mayor Parker loses a key member of her team going into her final year as Mayor.

David Feldman

City Attorney David Feldman on Friday announced that he plans to resign next month, citing, among other reasons, that he could better defend the city’s embattled equal rights ordinance as a key witness than as a lawyer in an upcoming case.

Feldman has played a crucial and at times controversial role in Mayor Annise Parker’s administration, alternately acting as chief negotiator, attack dog, policy wonk and spokesman. He said Friday that the main reason for his departure was a desire to work at a law firm with his son, also an attorney. Feldman spent 33 years in private practice, running his own firm after serving as a partner at Vinson & Elkins, before Parker appointed him in May 2010.

“The primary driving force is the desire to go back into private practice and frankly to go back into private practice at a time when I think there are people out there who I used to represent who still remember me,” Feldman said. “And my son has been after me continuously. There’s a draw there, there’s an allure: ‘Feldman and Feldman.’ ”

Feldman said he long had planned to leave by early 2015 but acknowledged the precise timing of his resignation was driven by the lawsuit against Parker’s signature equal rights ordinance, set for trial Jan. 19.

[…]

The Louisiana native and Army veteran appeared on the verge of leaving last January, when Parker gave him a hefty 43 percent raise, to $350,000. The raise made Feldman the second highest-paid municipal employee in the state, according to the City Controller’s office, which questioned the decision.

Feldman then called his work with the city “the most challenging and interesting chapter” of his career, and argued that his experience – many city attorneys are young lawyers on their way up; Feldman is 65 – had allowed him to shift the focus of the job from defensive advice to proactive solutions.

This fall, for instance, Feldman spearheaded the effort to ban synthetic drugs in Houston. He also has touted his effort to force developers who illegally remove trees on public land to pay damages to the city.

“I’d like to think I’ve set the tone for city attorneys in the future to have a more expansive role,” Feldman said. “They’re not just caretakers, and they’re not just super­visors of other lawyers, but they have the opportunity to help shape where the city is going.”

This approach made Feldman a piñata long before the equal rights fight. There was his role in ending a law firm’s monopoly on collecting delinquent city property taxes, an ordinance he drafted prohibiting wage theft that was unpopular with business groups, and a much-criticized strip club settlement that saw 16 clubs get clearance to allow fully topless dancing in exchange for funding a police unit to combat human trafficking.

It was indeed Feldman’s style to swing for the fences, which was not how it was with most City Attorneys before him. And like baseball players who take that approach, sometimes he hit it out of the park, and sometimes he swung and missed. Overall I’d say he had more wins than losses, though I’m sure those who didn’t like him would argue with me. One can only imagine what the last five years would have been like with someone who had a different philosophy in the City Attorney’s office. Be that as it may, to a large degree Feldman’s tenure as City Secretary will be judged by the result of the HERO repeal lawsuit, as his actions during the process are a big part of the reason why we are where we are now. The implications and repercussions of that lawsuit could wind up being far bigger than just the Houston ordinance, as Texas Leftist points out. The stakes are really high, so we’d all better hope that Feldman’s work on this will hold up. Texpatriate, PDiddie, and Hair Balls have more.

Bell fundraising lawsuit to be heard in January

A busy legal calendar just got a little fuller.

Chris Bell

Chris Bell

A judge in January will hear likely mayoral candidate Chris Bell’s request to block Sylvester Turner’s plan to transfer money from his officeholder account to his mayoral account when the fundraising period opens on Feb. 1.

Judge Elizabeth Ray of Harris County’s 165th Civil Court will hear Bell’s request for a temporary injunction on Jan. 12 at 1:30 p.m. A hearing on Bell’s request for a summary judgment likely will follow later.

Turner has been open about his plan to transfer money raised for his unopposed state legislative campaign to his mayoral bid in February. While all other mayoral candidates are not allowed to raise money until then, Turner has raised hundreds of thousands of dollars this fall and can transfer the first $5,000 from each individual donor in February, according to the interpretation of Houston City Attorney Dave Feldman.

Bell disputes that finding.

See here for the background. Bell’s is one of two lawsuits filed over Houston’s campaign finance laws. That other suit argues that the blackout period itself is illegal, so someone is going to be unhappy when all is said and done. Anyway, this one will be heard the week after the Fifth Circuit action. Like I said, a busy month.

Lawsuit filed over Houston campaign blackout rules

From the inbox:

Trebor Gordon

Trebor Gordon

Late Tuesday afternoon, Houston City Council candidate Trebor Gordon filed a First Amendment lawsuit challenging a discriminatory Houston ordinance that prevents city candidates from fundraising until February.

Gordon is a conservative candidate for Houston City Council at large. “Houston is a great city because of the entrepreneurial culture of its citizens, among other things,” Gordon said. “But our current leadership has been chipping away at that spirit, overregulating and fleecing the taxpayers with a runaway budget. I’m running to restore responsible leadership and let Houstonians run their own lives.”

“I’m also compelled to address the deeply offensive posture Mayor Parker has taken towards people of faith in this city, harassing pastors with abusive subpoenas,” Gordon continued. “I have to address these issues now, because they are happening now. I can’t wait until February to start my campaign.”

Gordon will be on the ballot in the city’s next general election in November 2015. Currently, section 18-35(a) of the Houston code of ordinances states that candidates may only solicit or receive contributions beginning in February of the election year and ending on March 4 of the year after the election. This provision prohibits fundraising for a full ten months of every two-year cycle, and candidates have only nine months to raise funds before Election Day.

Gordon is represented by political law attorney Jerad Najvar. “There is no blackout period banning bad decisions by city officials for a part of every election cycle,” Najvar said, “and the government has no authority to tell Gordon—or any other candidate—to wait until February to start campaigning. City officials have access to free media all day long, and my client certainly has the right to fund his campaign and speak to the public. This waiting period serves only to insulate the city from organized opposition.”

Najvar continued: “The blackout period is facially unconstitutional. But it gets even worse, because people who currently hold non-city office are raising money right now, and everybody knows it will be transferred to their city campaign in February. This whole system is an absurd charade encouraging candidates to act like they’re running for something they’re not. While these shadow campaigns are proceeding aggressively, nonincumbents like Gordon have to sit on their hands. The First Amendment does not permit such nonsense.”

The case is Gordon v. City of Houston, No. 14-CV-3146, currently pending in federal court in the Southern District of Texas, Houston Division. Gordon has asked for an immediate injunction, and is awaiting a hearing date from the court.

Gordon’s complaint is available here; the legal memorandum is here.

Gordon was a candidate for At Large #2 last year; he finished fourth out of four with 6.20% of the vote. His July finance report showed about $1000 raised. I doubt this lawsuit will matter much for his 2015 candidacy, but I think he raises a valid point. I’m not exactly sure what the city fundraising blackout period accomplishes. It makes sense to have one for the Legislature while it’s in session, but Council is technically in session year-round, during the blackout period and outside of it. It doesn’t prevent a sitting officeholder from being solicited while an ordinance that affects the donor in question.

According to the Chronicle, Gordon’s lawsuit is the second one to have been filed over this matter.

Gordon’s suit comes a month after Chris Bell, a likely mayoral candidate, filed his own suit asking a state court to disallow Sylvester Turner, considered a frontrunner in the race for mayor, and other competitors from conducting this type of end-around.

Turner has raised money throughout the fall and hauled in more than $400,000 at a recent fundraiser for his state representative campaign despite the fact that he does not have an opponent. Bell is asking for an injunction to be issued prior to Feb. 1.

The city attorney, David Feldman, has signed off on Turner’s plan, despite Bell’s and some campaign finance experts’ view that the Turner plan violates at least the spirit of the ordinance.

I know that Bell’s law partner sent a letter to Feldman questioning his decision about this, but if a lawsuit followed I couldn’t find any news stories about it, either in the Chronicle or via Google. A search of the District Clerk’s records found this action from October 17, so I guess Team Bell did indeed follow up on that letter. One way or another it looks like the preseason to the 2015 elections will be at least as interesting as the main event. Texpatriate has more.

UPDATE: Here’s the Chron story on Bell’s lawsuit filing, which Teddy Schliefer emailed to me. My search did not find this for whatever the reason.

Red light cameras: The final insult

Awesome.

Gone

Gone

In settling the lawsuit with camera vendor American Traffic Solutions, whose contract was supposed to run through 2014, the city agreed to pay the Arizona-based company $4.8 million.

The city had $2.3 million in red-light ticket revenue on hand at the time of the settlement, and officials said they expected to be able to pay the balance from fines collected from some of the tens of thousands of delinquent light-runners who had not yet paid up.

No such luck.

Depending on how much new red light ticket revenue is collected between now and Dec. 31, when the final settlement payment is due, city finance officials say more than $1.1 million of the settlement could wind up being pulled from the general fund, meaning taxpayers and not red light violators will be on the hook.

“My thoughts are the same now as they were then,” said Councilman Jack Christie, one of two current council members who opposed the settlement, concerned it would impact the general fund. “As a fiscal conservative, you never want to commit money that you don’t have. It’s not complicated.”

Councilman C.O. Bradford, who also opposed the settlement, agreed.

“(City Attorney) David Feldman and Mayor Parker assured council that general fund money would not be used,” he said. “Some of us said, ‘Let’s not put in that backup proviso then, let’s make sure the (processes) are there to collect those dollars.’ That didn’t happen.”

See here, here, and here for the background. I get what the city had in mind, but I have no desire to defend it at this point. Instead, here’s the trailer to “The Naked Gun 33 1/3: The Final Insult”, since that was what came to my mind as I wrote the title to this post:

May we never hear of these accursed things again.

Re-revisiting red light cameras

This horse is dead. Please stop beating it.

Gone

Gone

Four years after Houston voters rejected red-light cameras, the divisive issue unexpectedly resurfaced Tuesday when police officials presented figures indicating that removing the cameras made 51 busy intersections more dangerous.

Auto crashes have more than doubled at those intersections since voters banned use of the cameras in a 2010 referendum, according to figures presented to a City Council committee by the Houston Police Department.

Executive Assistant Chief Tim Oettmeier acknowledged the analysis was imprecise, however, noting that the data did not split neatly into four years of collisions when the cameras were in place and four years when they were not. In addition, Oettmeier said police did not examine the traffic counts at those intersections to see if the increase in collisions might be related to the streets being busier.

Oettmeier did discuss citywide crash figures, which show steady increases over the last four years.

The red light camera statistics were only a slice of Oettmeier’s presentation, which focused on HPD’s proposal to increase the force by 590 officers over the next five years. The discussion follows a staffing study that showed the department is short-staffed in some areas and did not investigate 20,000 cases with workable leads last year.

Some council members questioned the methodology behind the red light crash data and the purpose of including it in the presentation. Among them was Councilman Michael Kubosh, a bail bondsman who, with his brothers, led the 2010 referendum effort that got the cameras banned.

“I don’t know why it’s in this report,” he said. “There’s a charter amendment that says we’re not going to do this. There was a vote of the people; the people said no, and why you even waste your time to put this in the report to us today, I do not know. Maybe it’s that I’m sitting on council – that’s the only reason I can see.”

Oettmeier did not respond to Kubosh’s comments, but said later that he included the camera information to anticipate questions about whether HPD still needs as many police officers with its large recent investments in technology.

Red-light cameras are “a thing of the past,” Oettmeier said, adding he had no “hidden agenda” in mentioning them Tuesday. City Attorney David Feldman confirmed the city would not be able to deploy red light cameras without another public vote.

“The red light camera portion of the presentation was just an attempt to validate that that type of technology does, in fact, cause an effect, and it does help police officers out,” Oettmeier said.

That’s all very nice, and I get that Oettmeier was speaking in the context of HPD staffing levels and personnel needs. But seriously, just stop. We are not going anywhere near red light cameras any time soon, for good reason. Plus, no one who doesn’t already believe in red light cameras buys the crash data. Hell, I spent way too much of my life trying to make sense of the various crash studies done here in Houston, and I have a hard time accepting any of it. Just make your case for more traffic officers and leave it at that, OK? Thanks.

Lies are worse than missteps

But you know what we’re going to hear more about.

PetitionsInvalid

Conservative outrage over the Parker administration’s admittedly bungled subpoena of five pastors’ sermons last week marked just the latest episode in a messy political saga surrounding the city’s equal rights ordinance, with both critics and supporters making significant blunders.

For example, a recently leaked deposition of City Secretary Anna Russell shows she entered a meeting with Mayor Annise Parker and City Attorney David Feldman having drafted a memo saying there were enough signatures, then left agreeing to tack on a paragraph from Feldman saying the effort had failed.

Similarly, opponents of the non-discrimination ordinance have struggled to explain a video showing one of their leaders explaining the very rules the city says they violated to those who would be gathering petition signatures as the effort got underway.

“If you’re going to undertake these efforts, you want to drill people pretty carefully,” said Richard Murray, a University of Houston political science professor. “You don’t want to waste people’s time.”

For her part, Parker has handled the back-and-forth around the case “clumsily,” Murray said, pointing to the subpoena of the pastors’ sermons that drew national attention and criticism. “Usually, she shows pretty good political judgment. She let her political guard down a bit with this.”

See here, here, and here for the background. I’ll stipulate that the subpoenas should have been better, and I’ll leave the petition questions to the court. But the outrage over those subpoenas is vastly out of proportion with the magnitude of the sin committed by the city’s lawyers, and that outrage is fueled by a relentless barrage of bald-faced lies, the same kind of lies that have underpinned the opposition to the HERO from the beginning. Lies, it should be noted, that are being peddled by members of the clergy, the kind of people whose behavior might reasonably be held to a high standard. I’m not talking about exaggerations or spin or the like but provably false statements that are intended to be factual. You wouldn’t know it from most of the stories you’ll read about the HERO and the attempts to repeal it, though. I have no idea why that is.

Mayoral fundraising 2015

Yeah, I know, another post about the 2015 election. I sure am doing a lousy job of not thinking about that just yet, but this raises an interesting point.

Chris Bell

Likely mayoral candidate Chris Bell is asking the city of Houston to reconsider its interpretation of an ordinance that would give Sylvester Turner a major fundraising advantage when he runs for mayor next year.

Bell’s law partner, Geoff Berg, sent City Attorney David Feldman a letter last week arguing that Turner and potential candidate Harris County Sheriff Adrian Garcia should not be able to raise money for their officeholder accounts and then transfer most of the funds to their mayoral accounts at the start of the race. As detailed in the Chronicle last month, Turner has raised money for his unopposed state legislative race this fall and has plans to eventually transfer the first $5,000 of each donation this winter. That is the limit for individual donations in a city election.

Feldman has signed off on Turner’s plan, but many campaign finance experts do not share his interpretation, instead arguing that candidates should merely be able to make a single $10,000 donation to the mayoral bid from their officeholder account. That is how much an entity like a PAC is allowed to donate under the city’s ordinance.

Bell, like other potential candidates who do not hold non-city offices, is prohibited from raising any money for a mayor’s race until Feb. 1. Berg argues in his letter that this unequal footing is ultimately unfair.

“The Ordinance simply cannot reasonably be read to mean anything other than what it says: the maximum amount which may be transferred from non-city campaign accounts is $10,000,” Berg wrote. “The blackout period was not intended to be a fundraising bonanza for officeholders at the expense of citizens who may wish to get involved in public service.”

The letter from Berg is at the link above. It should be noted that one reason Turner is raising money now is because come January, when the Legislature is in session, he’ll be restricted from doing so by the rules of that body. At least, he’ll be barred from raising money for his State Rep account; I’m actually not sure what the rules would be for him to raise money for a different campaign. It’s probably a can of worms he doesn’t want to have to deal with. Be that as it may, I tend to agree with Texpatriate that a better solution might be to let Bell and the teeming mob of other Mayoral wannabes do their own fundraising now as well. If nothing else, it would help sort out the real candidates from the candidates-only-in-speculative-articles-about-potential-candidates pretty quickly. That would require Council to revisit its 2005 campaign finance reform ordinance, which I feel quite confident saying ain’t gonna happen. I don’t see a compromise that’s likely to be satisfactory to all parties here, so I suspect this issue is going to be decided by a judge. Isn’t that always a great way to kick off a campaign season? Campos has more.

City files amended petitions

From the inbox:

RedEquality

As follow up to a promise made earlier in the week, the City of Houston has revised its subpoenas in the Houston Equal Rights Ordinance (HERO) repeal petition case. The disputed request has been narrowed to focus solely on communications related to HERO and the petition gathering process. There is no mention whatsoever of pastors sermons.

“The original subpoenas for sermons that were filed by pro bono attorneys helping the city prepare for the January trial in this case were far too broad,” said Mayor Annise Parker. “I support the right of the clergy to say whatever they want to say, even if I disagree with them. This is not about what they may be preaching from the pulpit. It is about proving that the petition gathering process organized by these pastors did not meet the requirements of the City Charter. This information is critical to proving the city’s contention that the petition was ineligible for placement on the ballot and that the organizers knew this.”

The city is seeking information from just five pastors who were at the forefront of organizing the petition drive: Pastor Hernan Castano, Ms. Magda Hermida, Pastor Khan Huynh, Pastor Steve Riggle and Pastor David Welch. The revised subpoenas now call for all speeches or presentations related to HERO or the petition prepared by, delivered by, revised by or approved by them or in their possession.

According to the City Charter, a valid petition must contain enough signatures of registered voters to at least equal 10 percent of the total votes cast in the last mayoral election. Each signature must be accompanied by the printed name, address, voter registration number or date of birth and the date signed. Anyone who collected signatures must also have personally signed the petition and have appeared before a notary to acknowledge under oath that the signatures were made in their presence. Thousands of the signatures submitted with the HERO petition failed to meet one or more of these requirements and had to be disregarded. As a result, the petition could not be placed before voters. HERO opponents have filed suit against the city in an effort to reverse this decision and force the issue onto the ballot. The case is set for trial in January.

The press release document is here. One would think this would be the end of it, but that would depend on the opposition being honorable. I wouldn’t count on that.

Conservative leader Jared Woodfill, one of four plaintiffs in the suit, said the revision does not go far enough. The city needs to withdraw any subpoena related to pastors or religious institutions, he said, arguing Houston can build its case from the documents already subpoenaed from the plaintiffs, such as information about the people who circulated the petitions.

“The mayor needs to get the city out of the business of subpoenaing churches. There’s absolutely no reason for this city to be trampling on the First Amendment rights of these pastors,” Woodfill said. “It starts with these five, and then who’s next? There were pastors all across the state talking about the HERO ordinance.”

Woodfill’s thoughts were echoed by national conservative groups.

Family Research Council president Tony Perkins called the revision a “head-fake” that does not remove the city’s infringement of religious liberties, and Alliance Defending Freedom attorney Erik Stanley said the revision “solves nothing.”

Any time the Liar Tony Perkins is involved, you can throw honor and decency out the window. And if Jared Woodfill doesn’t like getting subpoenaed, he can drop the lawsuit. It wasn’t the city that started this fight, after all. I’m glad the city made this adjustment, but everyone needs to chill and the plaintiffs and their sycophants need to get over themselves. Statements from Equality Texas and the Houston GLBT Political Caucus are beneath the fold, and Texas Monthly has more.

(more…)

The outrage machine is fully engaged

We’ll see how long they can keep it up.

Not Ted Cruz

Not Ted Cruz

A legal battle between the city of Houston and religious leaders has erupted into a national debate this week about religious liberty and freedom of speech, even as Mayor Annise Parker argued the controversy was based on a misunderstanding.

Conservative lawmakers and activists expressed outrage upon learning that lawyers acting on behalf of the city had sent subpoenas this month to pastors who had vocally supported a failed petition drive aimed at repealing Houston’s equal rights ordinance.

[…]

Various public officials, including religious liberty advocates, have condemned the subpoenas as censorship and an attack on religious liberty.

“This week, the government of Houston, Texas, sent a subpoena to silence prayers,” U.S. Sen. Ted Cruz said Thursday at a news conference in Houston.

Attorney General Greg Abbott sent a letter to Houston City Attorney David Feldman urging him to withdraw the subpoenas.

“No matter what public policy is at stake, government officials must exercise the utmost care when our work touches on religious matters,” Abbott wrote. “If we err, it must be on the side of preserving the autonomy of religious institutions and the liberty of religious believers. Your aggressive and invasive subpoenas show no regard for the very serious First Amendment considerations at stake.”

State Sen. Ken Paxton, the Republican candidate to replace Abbott as attorney general, called the subpeonas “unacceptable.”

“Not only does this infringe upon the right to Freedom of Speech, but it also grossly encroaches upon our Freedom of Religion — both fundamental rights protected by the U.S. Constitution,” Paxton said.

Blah blah blah and so on and so forth. I agree that the subpoenas were too broad. I might have some sympathy for the pastors if there were anything sympathetic about them, but man, the lies lies lies lies. You’d think by now I’d be used to it, but somehow I’m still amazed by these guys and their loudest defenders to just say whatever the hell they think without any regard for its truthfulness. It’s impressive it its way, and it does do the job of getting some people riled up. You’d just think they might be more concerned about the cost to their souls than a heathen like me.

Both Parker and Feldman have said that they did not approve the subpoenas ahead of time and first saw the language used in them on Tuesday. The subpoenas were handled by outside lawyers working on behalf of the city. Both agreed that the language in the subpoenas was overly broad and would be clarified.

“We are not interested at all in what some person may have preached about me or the GLBT community,” Parker said Wednesday at a news conference. “People are rightly concerned if a government entity tries to in any way inhibit religious speech. That is not the intent.”

Parker said the goal of the subpoenas was to see if there were any specific instructions given by pastors about how the petitions should be filled out. She suggested that the outrage over the word “sermon” in the supboneas may have been due to “deliberate misinterpretation.”

“Let me just say that one word in a very long legal document which I know nothing about and would never have read and I’m vilified coast to coast — it’s a normal day at the office for me,” Parker said.

That’s about the right response. Parker and Feldman have addressed the substantive issue. I hope they don’t get intimidated by the BS onslaught. The city should be on firm ground seeking communications about specific petition instructions. Amend the subpoenas as needed, stick to that, and let the blowhards wear themselves out. For some guidance on how to think about this, go read The Slacktivist, and for a straightforward recital of the boring facts, see Media Matters.

Subpoenaing sermons

Not sure about this.

PetitionsInvalid

Houston’s embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists who have sued the city.

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot.

City attorneys issued subpoenas last month as part of the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

The subpoenas were issued to pastors and religious leaders who have been vocal in opposing the ordinance: Dave Welch, Hernan Castano, Magda Hermida, Khanh Huynh and Steve Riggle. The Alliance Defending Freedom, a Christian legal organization known for its role in defending same-sex marriage bans, filed a motion Monday on behalf of the pastors seeking to quash the subpoenas, and in a press announcement called it a “witch hunt.”

The city’s lawyers will face a high bar for proving the information in the sermons is essential to their case, said Charles Rhodes, a South Texas College of Law professor. The pastors are not named parties in the suit, and the “Church Autonomy Doctrine” offers fairly broad protections for internal church deliberations, he said.

Calling it an “unusual but not unprecedented” subpoena request, Rhodes said the city would stand a better chance of getting the sermons if it were a criminal case in which the message or directive in the sermons prompted a specific criminal action.

Still, he said, the city likely will get a boost because many of the sermons are broadcast or recorded and are intended to be shared with the public.

“This is unusual to see it come up in a pure political controversy,” Rhodes said. “The city is going to have to prove there is something very particular in the sermons that does not come up anywhere else.”

Don’t get me wrong, I have zero sympathy for the pastoral haters, whose affinity for lying about the HERO ought to make your average sinner blush. I look forward to them getting crushed in court, or if necessary at the ballot box. I think anything that has been recorded in some form for the purpose of being distributed is fair game here. I guess it’s not clear to me what the city is hoping to find by subpoenaing this stuff. Emails, other written correspondence, phone records, transcripts – these things I understand. I don’t quite see what the city’s goal is.

The other concern is that the HERO haters will do an effective job at portraying themselves as victims. It is the one thing they are really good at, after all. It looks like they succeeded, unfortunately.

Amid outrage from religious groups, Mayor Annise Parker and City Attorney David Feldman on Wednesday appeared to back off a subpoena request for the sermons of certain ministers opposed to the city’s equal rights ordinance, with Parker calling it overly broad.

[…]

“There’s no question the wording was overly broad,” she said. “But I also think there was some misinterpretation on the other side.”

The subpoenas drew national attention this week, prompting Christian conservative groups to condemn the request as governmental overreach. U.S. Sen Ted Cruz issued a statement Wednesday, saying Parker “should be ashamed.”

“Let me just say that one word in a very long legal document which I know nothing about and would never have read and I’m vilified coast to coast,” Parker said. “It’s a normal day at the office for me.”

The intent, Feldman said, was simply to get all communications between pastors about the signature gathering instructions, a key part of a lawsuit opponents have brought against the city. Critics filed suit after Feldman announced they had failed to gather enough valid signatures to force a repeal referendum, claiming the city attorney illegally inserted himself in the signature verification process.

Feldman said the city would clarify what it is looking for in its response to the pastors’ motion.

Glad to hear that, but I think we know what happens from here. I mean, once the website Snopes has to get involved, truth and nuance lose all meaning. Let’s just hope this is a short-term story. If the motion to quash succeeds, or if the city is allowed to go on this document hunt and comes up empty, all bets will be off on that. Campos and Texpatriate have more.

Smoking ban extended to pedestrian plazas

I’m okay with this.

Main Street Square is now a smoke-free zone following the City Council’s decision Wednesday to expand Houston’s smoking ban to pedestrian plazas, marking the latest effort from the Parker administration to curb lighting up in public places.

The changes to the smoking ordinance are twofold: it expands the ban to Houston’s three so-called “public pedestrian plazas” – streets permanently closed to car traffic but open to pedestrians; it also adds “combustible” and “plant materials” to products included in the smoking ban. City Attorney Dave Feldman introduced those changes last month alongside a proposed ban on synthetic marijuana, that will go to the council next week.

Feldman said complaints from business owners at Main Street Square about smoking and litter prompted the move to expand the ordinance.

In researching how to ban smoking at Main Street Square, the legal department realized there were two other areas in the city that qualify as public pedestrian walkways: a small area on Dunlavy north of Allen Parkway near Beth Yeshurun Cemetery and a block-long portion of the Columbia Tap Rail Trail along Walker Street between Dowling and St. Charles.

Previously, the city’s smoking ordinance contemplated only tobacco, outlawing smoking within 25 feet of a public facility, places of employment, bars and restaurants, outdoor sports arenas and stadiums, city libraries and parks.

The prohibition on smoking in parks and outside libraries is a recent development. I see this as an extension of that. There’s an argument to be made, as some Council members did, that this is an infringement on smokers’ freedom. I get that but I don’t buy it. It’s one block – keep walking, and in another 30 seconds you can light up again. As for the synthetic marijuana stuff, see Texpatriate for a primer. This is probably the last tweak to the no-smoking ordinances for the foreseeable future, at least until we know more about the health effects of e-cigarettes.

HERO repealers try their luck with the Supreme Court

Because sure, why not?

PetitionsInvalid

Opponents of Houston’s equal rights ordinance have asked the Texas Supreme Court to force the city secretary to certify the signatures on a petition they submitted seeking to trigger a repeal referendum on the law.

Houston’s 14th Court of Appeals denied a similar request on Aug. 15, ruling that the emergency writ of mandamus would have the same result as a favorable ruling in the pending lawsuit opponents filed against the city earlier this month. The plaintiffs, the judges wrote, could appeal after a ruling comes down at the trial court level.

Trial in that case is set for Jan. 19.

The new filing with the Supreme Court, turned in late Tuesday, is similar to the group of conservative pastors and activists’ previous requests. It seeks to have the court force the city to suspend enforcement of the ordinance, to put the ordinance to another vote of the City Council and, if the council does not repeal it, to put the issue before voters.

Mayor Annise Parker already has agreed to suspend enforcement until a legal ruling is issued. Officials have said the deadline for placing items on the November ballot was Aug. 18, meaning a favorable ruling for opponents would appear to result in a vote in either May or November of 2015.

City Attorney David Feldman pointing to the appellate court’s denial of the similar mandamus filing, said opponents will face the same legal hurdles in going to the Supreme Court.

“It doesn’t change because the venue changes,” he said. “The law is still the same.”

Plaintiff Jared Woodfill said his side simply disagrees with the appellate court’s ruling and is hopeful the Supreme Court justices will see things differently.

See here, here, and here for the background. Remember, Woodfill et al are suing to get their referendum on the ballot. The writ of mandamus they have filed with the Supreme Court asks that the referendum be put on the ballot. You may wonder, as did Judge Shaffer and the 14th Circuit Court of Appeals, what the point of the lawsuit is if the mandamus gives them what they’re suing for. But like me, you probably don’t have the brilliant legal mind of Jared Woodfill. It doesn’t cost them anything but Andy Taylor’s exorbitant legal fees to ask, so what the hell. Texpatriate has more.

HERO repeal petition lawsuit set for January

There will be no HERO repeal referendum on the ballot this year, but depending on how the trial (and likely appeal) goes, there could be one next year.

PetitionsInvalid

Opponents of Houston’s equal rights ordinance dropped their request for a temporary injunction Friday that could have triggered a process to set a repeal referendum this November.

That means their lawsuit will not be heard until January 2015.

State District Judge Robert Schaffer early in the Friday injunction hearing questioned why the plaintiffs were seeking the same outcome via injunction as they are seeking in the lawsuit.

“If I grant the relief you’re asking for, isn’t that granting you everything you’re asking for in your petition?” Schaffer asked.

The announcement that the injunction request would be dropped came after Schaffer consulted with both parties in his chambers.

Also Friday, Houston’s 14th Court of Appeals denied a separate request from opponents to force the city secretary to certify the signatures on their petition and trigger a referendum.

A three-judge panel ruled that the emergency writ of mandamus plaintiffs sought would have the same result as a favorable ruling in their pending lawsuit that went before Schaffer’s court Friday. The plaintiffs, the judges wrote, could appeal after a ruling comes down at the trial court level.

See here, here, and here for the background. What Judge Shaffer was saying was that in the lawsuit the plaintiffs asked that the petitions be declared to be valid as part of their request for immediate injunctive relief, which is to say they were asking to be declared the winner before a trial took place. Now we’ll have that trial, and hopefully settle the issue once and for all. In the meantime, the city has agreed to continue not enforcing the ordinance pending the outcome of the trial. Mark your calendars for January 15. Jerad Najvar, who had previously made the case for the plaintiffs, Hair Balls, Lone Star Q, and LGBTQ Nation have more.

The case against tossing the HERO repeal petitions

Jerad Najvar makes a constitutional argument that the city of Houston should have accepted the HERO repeal petitions even though many of the petition pages fell short of the requirements laid out in the city charter.

PetitionsInvalid

While we lack clarity as to exact numbers, it appears that given a blatant constitutional infirmity with part of the circulator requirement, and the structure of the language of the relevant charter provision, the requirement that the circulator be a petition signatory herself may be unenforceable. If so, at least those 2,694 signatures in the City Attorney’s first category, and possibly many more, would be effective.

Under the Houston City Charter, only “qualified voters” of the City may sign a recall petition, Charter art. VIIa, § 2, and in this context, the Texas Election Code defines “qualified voter” as “registered voter.” § 277.0021. This same requirement applies to the referendum petition filed by the opponents of the City’s Equal Rights Ordinance, because referendum petitions must be “signed and verified in the manner and form” required for recall petitions. Charter art. VIIb, §§ 2, 3. So, one must be a registered Houston voter to sign a referendum petition.

The signatures also must be verified in one of two ways. The first option is for each petition signer to sign the petition in the presence of a licensed notary or other “officer authorized by law to take acknowledgments and proof of deeds.” Charter art. VIIa, § 3; art. IX, § 3. This is plainly burdensome on the petition process; petition gatherers do not typically travel door to door with a notary. Alternatively, a petition circulator may complete an affidavit swearing that all of the signatures on a petition page were made in his presence on the date the signature indicates. Charter art. VIIa, § 3. The circulator, however, must be one of the signers of the petition. Id. Since only registered Houston voters may sign a petition, these provisions together mean that the Houston Charter requires that petition circulators also be registered Houston voters.

Here we have the blatant constitutional infirmity: the requirement that the circulator be a registered voter of the jurisdiction has been unconstitutional since the Supreme Court decided Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999).

Buckley held that circulation of an initiative petition constitutes core political speech, and that the registered-voter requirement as applied to petition circulators reduced the total quantity of speech by reducing the pool of potential circulators. 525 U.S. at 195-97. This burden was not justified, Buckley held, because the government could achieve its stated interest (in ensuring that circulators are amenable to legal process in order to police lawbreaking) by requiring that they simply file a statement of residence rather than actually being a registered voter. Id. at 197.

This holding has been applied in many other cases to strike down registered-voter requirements for initiative circulators, and has been extended to strike the same requirement as applied to petitions for a candidate to get on the ballot. This year, Congressman John Conyers successfully advanced this argument to force Michigan election officials to place him on the primary ballot after initially being declared ineligible because some of his circulators turned out to have not been registered voters. Moore v. Johnson, 14-cv-11903 (E.D. Mich. May 23, 2014).

[…]

It is unclear how many petition pages the City Attorney has called invalid due to the determination that the circulator was not a registered Houston voter. However, it is clear a great number of pages were invalidated for an alleged inability to determine that the circulator had “validly” signed the petition himself. To the extent that any circulator has been deemed to have not “validly” signed the petition because the circulator was not a Houston registered voter, such determination is unconstitutional under Buckley, and those pages would be reinstated. But the issue may be even broader than that. The text of the circulator statement–provided in the charter itself (art. VIIa, sec. 3)–does not make any distinction between circulators who are registered Houston voters and those who are not. All circulators are required to affirm they signed the petition. If it’s unconstitutional to require a circulator to be a registered Houston voter, it’s unconstitutional to require circulators to affirm that they signed a petition which they are only eligible to sign if they are a Houston voter. The circulator statement may be facially invalid, unenforceable to the extent it requires any circulator to affirm they signed the petition.

As you know – say it with me now – I Am Not A Lawyer, so take what I’m about to say with an appropriate dosage of salt. Najvar notes that the original brief that was filed didn’t specifically bring this issue up, but he expects it to be aired at the hearing on Friday. That may well be, but I have to say I thought that constitutional issues were supposed to be aired in federal court; the case is now back in state court, and the plaintiffs complained bitterly about the one-day journey to the federal courthouse. I’m a bit confused by all that now, but that’s probably just the non-lawyer in me talking.

Anyway, as far as the substantive issue here is concerned, I will confess that I have some sympathy for the argument Najvar makes. I said throughout the Ray Jones saga that I’d prefer to err on the side of inclusiveness. This case definitely tests my resolve on that, but the principle is the same even if the petitioners are vile and knew fully well the rules that they then went ahead and violated. Having said that, I can’t comment specifically on the precedents that Najvar cites, but I do know that in 2011 the Texas Legislature passed a law that required deputy voter registrars to be residents of Texas. A federal lawsuit was filed against this, and in 2012 a federal judge in Galveston sided with the plaintiffs and agreed that this requirement was a violation of the First Amendment. However, the Fifth Circuit Court of Appeals, villainous as ever, stayed the ruling and allowed the residency requirement to be enforced. The Supreme Court declined to intervene, and last year a three-judge panel, which included the infamous Edith Jones, ruled that the district court judge had erred in allowing a preliminary injunction.

Given all that, it’s not clear to me that Najvar’s constitutional argument would carry the day. At the very least, recent precedent suggests that residency requirements, however you think of them, may be allowable in some circumstances. I don’t know what the plaintiffs’ lawyers will argue in this case – I’m pretty sure Steve Hotze isn’t about to file an amicus brief for the challengers in the voter registration suit – but if they do bring it up I believe the city has a valid response it can make, even if it leaves a bad taste in my mouth. We’ll see how it goes.

UPDATE: Jerad follows up to address the points I raised about the voting registration lawsuit.

HERO repeal hopefuls try another venue

Whatever.

PetitionsInvalid

Conservative opponents of Houston’s equal rights ordinance have asked an appeals court to force the city secretary to certify the signatures on their petitions to force a repeal referendum on the November ballot.

Equal rights ordinance critics filed a request late Monday with Houston’s 14th Court of Appeals for an emergency writ of mandamus that would compel the city secretary to certify their rejected petition.

The filing marks the latest legal wrangling over the group’s lawsuit, already scheduled to be heard in state district court Friday. The suit claims City Attorney David Feldman illegally inserted himself into the petition verification process, throwing out entire pages of signatures based on notary and signature-gathering mistakes.

[…]

Jared Woodfill, one of the plaintiffs, said Russell’s original count should be validated. The writ of mandamus the group is seeking would compel Russell to verify signatures based solely on whether those who signed the petition are registered Houston voters and disregard the notary requirements Feldman considered.

“The people need to decide this as soon as possible,” Woodfill said.

If the group cleared the signature threshold, the ballot language immediately would go before City Council.

Feldman said the group’s filing largely mirrors the suit already pending in state court.

“They’re effectively trying to get two bites at the same apple,” Feldman said. “Substantively, we’re really dealing with the same issues.”

That’s what I think, too, but as always I Am Not A Lawyer, so don’t take my advice. In any event, the writ of mandamus is here, and the case information is here. If you look very closely at the Parties section, you might notice a small misspelling. For the record, this is Anise, and this is Annise. Slight difference.

One more thing:

Woodfill said the group has until the end of the month to get the issue on the November ballot. However, he said he anticipates that even if the court of appeals grants the group’s request, there will be a “battle” to meet that deadline.

I’ve noted this before, but according to the Secretary of State, the deadline for any referendum or measure to be put on a ballot is Monday, August 18, which is 78 days before the election. This is a matter of Texas law. I’m not sure what Woodfill thinks the deadline is or why, but I’m pretty sure it’s August 18.

HERO repeal lawsuit moves back to state court

Are we dizzy yet?

PetitionsInvalid

Conservative activists seeking to repeal the Houston Equal Rights Ordinance trumpeted a small victory Thursday when a court hearing resulted in the ordinance being suspended pending an Aug. 15 hearing.

Mayor Annise Parker, anticipating a lawsuit, had already said she would not enforce the ordinance until there was more legal clarity, but plaintiff and conservative activist Jared Woodfill said Thursday’s result was important.

“I think it makes a big difference because now you have a court order saying you can’t enforce it, even if you change your mind and you wanted to,” Woodfill said.

Woodfill characterized the suspension as having been ordered by visiting State District Judge Jeff Shadwick, a suggestion that prompted a chuckle from City Attorney David Feldman.

“This is not the judge ordering us, this is the city stipulating that it would not enforce, consistent with the mayor’s public representation,” he said.

See here for the previous update, and here for a copy of Judge Shadwick’s order. A hearing on August 15 is cutting is awfully close for this year’s election. If the petitioners ultimately win but can’t get onto the ballot till 2015, will the suspension of enforcement continue? Because if it is allowed to be enforced, I think the haters are going to have an awfully hard time maintaining the illusion that there’s anything harmful about the HERO. Who will believe their lies if they can see for themselves that they’re not true? So much easier to get away with lying when there’s no time for a fact-check. Oh well, sucks to be them.